David Simmons considers the legalities of the DWP and tribunals relying on ESA85 medical reports when making DLA decisions.
CPAG has become aware of what appears to be an increasingly common practice of ESA85 medical reports being used in disability living allowance (DLA) decision making by the DWP and tribunals. ESA85 medical reports are written by healthcare professionals employed by Atos when carrying out medical examinations for the purposes of the work capability assessment (WCA) for employment and support allowance (ESA). The reports are sent to the DWP and used by decision makers to determine whether a claimant has ‘limited capability for work’, the basic condition of entitlement for ESA.
It is unclear how widespread and routine the practice is and whether it is based on DWP internal guidance. For example, are routine checks always carried out to see whether there is an ESA85 report relating to a new DLA claimant? Similarly is any such report always included in papers sent to a decision maker, or subsequently to a tribunal considering a DLA appeal, or does this only happen where the claimant has failed the WCA? Our concerns, from the information we have, are that the ESA85 reports are only used as evidence to deny entitlement to DLA, and are sometimes out of date, and/or have been not been accepted at the appeal of the ESA decision.
This article considers whether it is lawful to rely on ESA85 reports when making decisions about DLA. This involves examining the legal principles which govern the use of evidence by decision makers and tribunals.
Evidence and decision making
DWP decision makers, and tribunals determining appeals against their decisions, are not bound by common law rules of evidence, or the rules governing civil trials in the UK. In practice, they have a free hand to consider any relevant evidence when making decisions, and First-tier Tribunals have the explicit power to consider any evidence, ‘whether or not it was available to a previous decision maker’.1Decisions wholly or partly based on evidence which is irrelevant to the issue under consideration, however, are likely to be erroneous in law, and there is a duty on decision makers and tribunals to give proper weight to each piece of evidence, depending on its source, relevance and reliability. First-tier Tribunals must also be able to properly explain their decisions, including their findings and conclusions in the light of the evidence before them. Further, the overriding objective of the tribunal procedural rules is to ensure cases are dealt with ‘fairly and justly’, which includes ensuring evidence is properly considered and weighted, and appellants are given the opportunity to comment on and refute evidence which contains disputed information.
So how do these general principles apply to the issue of using ESA85 reports in DLA decision making? Firstly, there is no legal bar to taking account of the reports as evidence. Given, however, that the legal tests for ESA and DLA are completely different, and that the ESA85 is specifically designed to relate to the former and not the latter, most of the information it contains is likely to be of limited relevance to the DLA disability conditions, and this should affect the weight given to the reports by the DWP and tribunals. To take one obvious example, the ESA physical disability test relates to ‘mobilising’ with or without a wheelchair, so that a wheelchair user may score no points for mobility problems under the WCA but still qualify for the higher mobility component of DLA on the basis of inability to walk.
Having said that, the ESA85 may contain information about a claimant’s general diagnosis, medical history and level of disability, which may be relevant to his or her DLA claim. This could include the health professional’s clinical and other findings and the claimant’s ‘personalised statement’ of her/his daily activities and difficulties. Evidence relating to particular descriptors could also include information relevant to the DLA disability tests, including the claimant’s ability to sit, stand, control her/his bladder and bowels, and remain conscious without fits or blackouts. The application of the mental health descriptors could also have relevance for the assessment of a DLA claimant’s supervision needs for the purposes of the care component or lower rate mobility component. As stated above, however, decision makers and tribunals should always be aware that the evidence in the ESA85 is not designed to inform DLA decision making and should therefore be applied to the DLA disability tests with caution. They should also take into account whether the information in the report is up to date or being disputed – eg, by a request for a reconsideration or appeal.
Most of the caselaw relating to this issue predates the introduction of ESA, but some of the principles established remain relevant.
In this case, the claimant’s DLA award was removed by a decision maker on the basis of an approved doctor’s report (IB85) for incapacity benefit. The Commissioner stated that it was not clear why an incapacity benefit report, rather than an examining medical practitioner’s (EMP) DLA report, was requested and used. The claimant had appealed against the disallowance of incapacity benefit, which was based on information in the report. That appeal was eventually upheld by a Commissioner, who strongly criticised the report. The DWP did not disclose this to the tribunal considering the claimant’s DLA appeal, however, merely submitting through standard wording for EMP reports, that the report was from ‘someone practised in making such assessments’.
The Commissioner (with reference to an earlier decision in CIB/4331/2001) confirmed that medical reports prepared in connection with a claim for one benefit can, and sometimes should, be obtained and used when considering a claim for a another benefit, but expressed concern about the use of the incapacity benefit report in this case, commenting in paragraph 8 of the decision:
‘There is no necessary connection between an incapacity benefit claim and a disability living allowance claim, so why was one made here? There appears to be no system under which the DLA Unit asks for approved doctor’s reports on a neutral basis – that is, such that the DLA Unit cannot pick and choose when it produces approved doctor’s reports and when it does not produce them. There also appears to have been no system in place to ensure that full disclosure was made about the appeal involving the approved doctor’s report.’
The DWP had a clear duty to inform the tribunal that the report had been challenged and fairness required ‘that it should be clear why additional evidence is obtained (or, in this case, why the approved doctor’s report was used in place of an examining medical practi-tioner’s report) when the process is not automatic’ (paragraph 12).
In this case, the claimant’s representatives informed the tribunal about the incapacity benefit appeal and the tribunal relied on evidence other than the report to dismiss the DLA appeal. The Commissioner’s comments about the use of incapacity benefit reports are instructive, however, and apply equally to the use of ESA85 reports. In essence, the Commissioner held that the use of such reports in DLA decision making is valid, but that it should be clear why the report was obtained and used and whether the information in the report is, or has been, disputed. It is also clearly important that the information in the report is current and up to date.
The tribunal in this case upheld a decision to refuse the higher rate mobility component of DLA, partly on the basis of a finding in an IB85 incapacity benefit report that the claimant was able to walk around a supermarket. Elsewhere in the report, however, it was stated that the claimant’s pain was aggravated by walking around a supermarket. The tribunal had erred in law by failing to take this into account and properly considering whether she could walk without severe discomfort. The Commissioner stated in paragraph 7 of the decision, ‘If an IB85 is put in evidence in a DLA case, then the tribunal must ensure that it takes account of all relevant parts of the form.’
This principle applies equally to ESA85 reports.
LD v SSWP  UKUT 208 (AAC) (CIB/1639/2009)
The judge addressed the issue and gave the following guidance in paragraph 11 of this decision:
‘I note that both the district tribunal judge, in granting permission to appeal, and the claimant’s representative have commented upon medical reports obtained in connection with one benefit (for example incapacity benefit) being used as evidence in another (for example disability living allowance). That may happen although the fact that the relevant legislative provisions are materially different does not prevent either party to an appeal from relying upon evidence produced in connection with another benefit. The essential questions are whether that evidence is relevant and material. A successful claim or otherwise to one benefit is not determinative in relation to another but, depending upon the quality of that evidence and the weight to be attached to it, it may be persuasive for or against a claimant. For example a claimant may wish to cite, as evidence in his or her favour, an incapacity benefit medical report in which the medical adviser indicated relevant functional restrictions or walking difficulties. In such a case the medical report would be evidence before the tribunal, to be evaluated in the context of the totality of the evidence. What the tribunal, to my mind, would be interested in in such a case would be the views of the medical adviser and the evidence (for example clinical findings and / or the claimant’s account of his or her routine daily activities) which led to the formation of those views. The same might hold equally good for a decision maker in deciding a claim for disability living allowance by having regard to an incapacity benefit medical report. In short, there is no prohibition on the statutory adjudicating authorities having regard to evidence obtained in connection with one benefit when considering a claim to or an appeal in respect of another benefit. Such evidence must, however, always be viewed in the context of the evidence as a whole and must be used with particular caution, bearing in mind that the legislative framework will inevitably be different.’
The last two sentences set out the key legal principles which apply to the use of ESA85 reports in DLA cases. The judge also raises the issue of the use of such reports to support (rather than deny) a claim or appeal. In certain circumstances, therefore, it may assist claimants to obtain copies of the ESA85 themselves and submit it as evidence when claiming DLA or requesting a supersession or appeal, bearing in mind the ‘particular caution’ referred to by the judge. The following decision illustrates the point.
DR v SSWP (DLA)  UKUT 210 (AAC) (CDLA/22/2010)
In this case, the claimant was refused DLA by the DWP and subsequently a First-tier Tribunal, even though she was entitled to incapacity benefit on the basis of exemption from the personal capability assessment. The judge held that the tribunal had erred in law by failing to take account of this and directed that a new tribunal should consider the evidence and medical reports used to make the incapacity benefit decision, commenting in paragraphs 31–33 of his decision:
‘In normal circumstances, of course, the outcome of an incapacity benefit claim will have no bearing on a disability living allowance claim and vice versa. The benefits are designed for different purposes and are subject to different eligibility conditions. Indeed, even where the statutory language may appear at first sight to be very similar, caution is required... However, that is not to say that evidence relied on in one context is nec-essarily irrelevant in another context.... So the fact that the appellant was found to be exempt from the personal capability assessment... could certainly not determine the outcome of a claim for disability living allowance... It was, however, a potentially material consideration, and certainly the evidential basis for the exemption needed to be explored.’
PJ v SSWP (ESA)  UKUT 224 (AAC) (CE/2541/1010)
The claimant in this case appealed against refusals of ESA and DLA. The appeals were heard together by a single tribunal, although the disability qualified member did not participate in making the decision on the ESA appeal. It appears that the DLA appeal was decided first and took into account evidence relating to the ESA appeal including the ESA85, even though this was not included in the DLA appeal papers.
The judge held that the appeals should have been heard and decided separately by correctly constituted tribunals, and that the tribunal hearing the DLA appeal ‘could not rely on the ESA85 unless it was submitted in evidence by one of the parties (which it was not) or the tribunal specifically directed it to be put in evidence in the DLA appeal... The clear error is that the tribunal relied on evidence from the ESA medical examination for its findings when that evidence was not properly before it and had been contested, but not tested, in another appeal...’ (paragraphs 22 and 23). The case illustrated that ‘evidence in an ESA85 report can only be tested by an ESA tribunal’ and can only be properly considered by a DLA tribunal after any ESA tribunal has made findings on it (paragraph 24). In short, ‘tribunals should take care not to rely in one appeal on evidence contested in another appeal until the contested issues have been resolved...’ (paragraph 33).
The following conclusions can be drawn.
- There is no legal bar on the use of ESA85 medical reports by the DWP and tribunals when making DLA decisions, and the reports are sometimes material evidence.
- Claimants can also use the reports to support DLA claims, supersessions and appeals.
- The evidence from the reports must be used with caution and carefully weighed, bearing in mind their different statutory purpose.
- Decision makers, tribunals and claimants should be clear about why they are using evidence from an ESA85 (as opposed, for example, to evidence from an EMP report).
- Decision makers and tribunals should ascertain whether the evidence in an ESA85 is current and is, or has been, disputed (eg, via an ESA appeal) and if this is the case, the evidence should not be relied on until the dispute has been resolved – eg, by a tribunal hearing the ESA appeal.
- ESA and DLA appeals must be heard and decided separately, and a DLA tribunal must not take account of an ESA85 report if an ESA appeal is pending.
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- 1. r15(2) Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008